Mtenga, J.: This is an application for revision of proceedings of Ilala District Court at Kisutu in respect of Probate and Administration Cause No. 5 of 1988, with the request G of quashing the proceedings and declaring them null and void.
This application has been brought under the provisions of section 44(1)(b) of the Magistrates Courts' Act, 1984.
Mr. Lipiki learned counsel appears for the applicant whereas Mr. Mwajasho another H learned counsel appears for the respondent.
The application is supported by an affidavit of the applicant Mr. Rashidi Hassan. In the affidavit of the applicant which was enlarged upon by his learned counsel it has been deposed that in filing Probate and Administration Cause No. 5 of 1988 in Ilala District I Court at Kisutu the respondent did not comply with the provisions of the Civil Procedure Code and those of the Probate
and Administration Ordinance Cap. 445 of the Laws. Mr. Lipiki referred me to section A 22 C.P.C. which he argues to be a mandatory one. He further argued that rule 39 of the Probate Rules is also mandatory. Furthermore, Mr. Lipiki submitted that on perusing the record of the District Court in Probate and Administration Cause No. 5 of 1988 one can easily detect that there was no petition filed by the respondent and neither citation as B required by Rule 73 nor publication as required under Rule 75 of the Probate Rules. There were no court fees paid and the record does not say that the respondent was exempted from paying court fees.
Mr. Lipiki learned counsel conceded that there was a petition lodged by the respondent C for letters of administration in respect of the same deceased's estate at Kariakoo Primary Court but later there was an order to the effect that the petition be transferred to Ilala District Court. It was then the duty of the respondent to comply with the provisions of C.P.C. and Probate and Administration as above stated. Annexure "B" is the only D record at hand.
Mr. Lipiki learned counsel further contended that the respondent knew before Kariakoo Primary Court that the applicant was objecting to the respondent's application to be appointed as the administrator to the deceased's estate for it was the applicant who E moved the lower Kariakoo Primary Court to transfer the case to Ilala District Court at Kisutu but the respondent never notified the applicant that he had already filed Probate and Administration Cause No. 5 of 1988, at Ilala District Court. He therefore submitted that the proceedings in the lower Ilala District Court together with the appointment of the F respondent to the deceased's estate are null and void and they should be declared so.
Last but not least, Mr. Lipiki learned counsel submitted that there were errors apparent on the record in annexture "B" to the application, which errors are material to the merits G of the case involving injustice to the application and if Publication was made in Probate and Administration Cause No. 5 of 1988 the applicant would have objected it because by then the applicant had already lodged an application No. 34 of 1988 involving the same deceased's estate. In annexture "B" annexed to the application the objector is H marked "absent" but it does not show if he was notified or not, yet the proceedings went on ex-parte.
In reply to that, Mr. Mwajasho learned counsel for the respondent submitted that the matter was first heard at Kariakoo Primary Court but later the applicant moved the I lower Kariakoo Primary Court to transfer the matter to Ilala District Court, therefore
it was the duty of the applicant to find it out as to whether or not it has already been A transferred there. Since the applicant did not do so, he slept on his own right and he cannot be heard to complain about it.
It is true as submitted by Mr. Lipiki learned counsel for the applicant that in filing B Probate and Administration Cause No. 5 of 1988 in Ilala District Court, the respondent did not abide himself within the ambit of the provisions of section 22 C.P.C. and rules 39, 73 and 75 of the Probate Rules. Indeed there was no petition of probate and administration lodged with Ilala District Court. There was neither citation nor publication C as required by the law. Court fees were never paid and there is no evidence to show that the respondent was exempted from paying court fees. To crown it all, the applicant was never notified of the hearing date of the objection at Ilala District Court though it is D evidently clear that the applicant was an interested person in the deceased's estate for he has already filed probate and Administration Case No. 34 of 1988 in respect of the same deceased's estate and it was he who moved Kariakoo Primary Court to transfer the matter to Ilala District Court.
It was therefore the duty of Ilala District Court to notify the applicant of the hearing date E of the matter.
Having so said I declare the proceedings in the lower Ilala District Court in Probate and Administration Cause No. 5 of 1988 together with the resultant appointment of the respondent as the administrator of the deceased's estate to be null and void and I quash F the proceedings and set aside the order of appointing the respondent as being the administrator of the deceased's estate. The respondent is to bear the costs of this application. If the parties are still interested in the deceased's estate then they should pursue the Probate and Administration Cause No. 34 of 1988 already pending in court G filed by the applicant. It is so ordered.
Order accordingly.
A